Motorola has won a preliminary injunction against Apple in Germany over …

Motorola Mobility on Thursday won an important injunction against Apple in Germany, which could potentially bar Apple's European sales arm from selling iPhones and 3G-equipped iPads. At issue is a Motorola patent for cellular data transmission, part of wireless data transmission standards that are encumbered by an agreement to license the patent on "fair, reasonable, and non-discriminatory" terms. The ruling suggests that, at least in Germany, raising a FRAND defense against standards-essential patent infringement claims could be a difficult proposition, and may force Apple to accept Motorola's licensing terms—FRAND or not—for "past infringement."

The FRAND defense has worked for Apple elsewhere, including in lawsuits brought by Samsung in The Netherlands and France. The basic argument is that suing over standards-essential patents instead of working out a FRAND agreement amounts to violation of anti-competition laws. Without some legal barrier to suing over such patents, they could potentially be used as a club to thwart any would-be competitors once they have built products incorporating a particular technology standard.

The European patent in suit, EP1010336 (B1) "Method for Performing a Countdown Function During a Mobile-Originated Transfer for a Packet Radio System," is part of the General Packet Radio Service standard upon which 2G and 3G data services operate. Basically, that means that all Apple products that use 3G data—including all iPhones and all 3G-capable iPads—use the patented technology.

Motorola claims that it approached Apple in 2007, after the launch of the original iPhone, to license this and other standards essential patents for FRAND terms. "We have been negotiating with Apple and offering them reasonable licensing terms and conditions since 2007," Scott Offer, senior vice president and general counsel of Motorola Mobility, said in a statement e-mailed to Ars.

Apple apparently didn't consider the terms very fair, and the issue spilled into the courts in October last year, with Motorola filing lawsuits and ITC complaints against Apple over 18 patents. Motorola also filed three separate patent infringement suits in Germany over related European patents, including the patent at issue.

In Germany, however, a legal precedent has established that a FRAND defense can only be used under certain conditions. Namely, a company must have made an offer to license the patents in question on FRAND terms and posted a bond for expected future royalties. If a patent holder then refuses the offer and sues, the FRAND defense can be used.

Apple apparently made an offer to license the patent on FRAND terms going forward. But the matter was complicated by the fact that Apple's agreement included a clause that would allow it to try and have the patent invalidated if Motorola tried to seek damages for past infringement over and above the agreed FRAND rate.

Apple is in fact contesting the validity of the patent in suit in another federal court in Germany. Obviously it doesn't want to have to pay for infringing a patent that might not be valid.

Unfortunately, the issue of past infringement of standards-essential patents hasn't previously been addressed in the relevant cases in Germany. As Motorola's legal team successfully argued, if a patent is infringed without a valid license, there should be some punishment in the form of monetary compensation. While competition law may require patent holders to honor FRAND agreements and offer a license going forward, the court agreed that past infringement should be treated differently.

The issue of past infringement gave Motorola a valid reason to reject Apple's FRAND license offer, according to the court, and for that reason it granted the injunction against Apple.

Since Apple is contesting the validity of Motorola's patent, it seems likely Apple will appeal the ruling. It may be able to have the injunction stayed until a decision on the appeal is reached. If the injunction remains in force, however, Apple may have to give in to Motorola's demands for damages.

Motorola, for its part, suggested it was willing to make a deal. "We will continue our efforts to resolve our global patent dispute as soon as practicable," Offer said.

UPDATE: Unsurprisingly, Apple will definitely appeal the ruling, according to a statement given to All Things D. "We're going to appeal the court's ruling right away," an Apple spokesperson said.

The company also seems confident that it can get an appeals court to stay the injunction—or at least avoid enforcement for the next couple weeks. "Holiday shoppers in Germany should have no problem finding the iPad or iPhone they want," the spokesperson said.

Apple fans are going to support this ruling because Motorola is just standing up for its IP and Apple shamelessly copied instead of innovating, right? ...

As other courts around the world have sided with Apple, one could just as easily claim that German law is FUBAR. Anyway, all this illustrates to me is that we need one, central, global body to manage patents, trademarks, and copyrights. It's getting a little ridiculous watching these arguments play out over and over again in every possible jurisdiction.

It's a FRAND patent. This lawsuit is basically just an aggressive negotiation process. Apple thinks it can get a better deal — or maybe even luck out and invalidate Moto's patent — with these proceedings, but it looks like sooner or later, Moto's gonna get paid.

As other courts around the world have sided with Apple, one could just as easily claim that German law is FUBAR.

Agreed, Germany is too eager to grant injunctions. I believed that when Samsung's tablet was banned as well as now. But OTOH, if it's overturned, the loser must pay the economic cost of the injunction, which is fair.

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Anyway, all this illustrates to me is that we need one, central, global body to manage patents, trademarks, and copyrights. It's getting a little ridiculous watching these arguments play out over and over again in every possible jurisdiction.

It's especially shocking that the companies so intertwined in lawsuits aren't demanding reform.

Highly doubt Apple will get banned over a FRAND patent. Far cheaper to license it which Mot. is obligated to do.

Motorola then did very clearly offer to license the patent in 2007; and then there were negotiations between AAPL and MMI in 2010. So the offer to license the technology certainly has been made.

Apple did not want to accept 2 binding conditions: 1) no retroactive licensing, meaning that AAPL has to pay a certain amount of damages awarded by court, and not get out of it by paying for the intervening years; and 2) relinquish the effort to invalidate the patent. These two binding conditions are required for AAPL to accept the MMI offer under FRAND terms under German corporate law. AAPL had already decided not to accept the FRAND offers from MMI on two separate occasions, I don't think they have the standing to force a license on THEIR terms only.

Apple fans are going to support this ruling because Motorola is just standing up for its IP and Apple shamelessly copied instead of innovating, right? ...

Apple-haters oppose his ruling because this is patent-trolling, right?

Well, very, very rarely does apple ever license anything. Now it seems they are willing to at least cross license. In any case, apple shouldn't be stupid and/or arrogant enough to see it through without EU sales.

All of this is getting out of hand. Apple should just accept the fact that while they innovated in a lot of key areas themselves, they didn't and never can, come up with 100% of the technology in the phone, hardware wise. Stupid software patents should still not stand period, but also if apple already has their SoC maker pay for this patent already, they shouldn't sue them either.

This is absolutely absurd. Kafka couldn't invent a more bizarre useless system of extortion than this. The entire world-wide patent system needs to be completely replaced. Patents are supposed to reward the inventor. That's all they should do. The penalty for using an idea someone else has patented should be payment of a fair license fee. That rewards the inventor. That's it. Right now they are used by huge corporations to stamp out competition in electronics, pharmaceuticals, ways of doing business, and even the food we eat. This absurdity has to be brought to an end. NOW! I'm mad.

Apple fans are going to support this ruling because Motorola is just standing up for its IP and Apple shamelessly copied instead of innovating, right? ...

Apple-haters oppose his ruling because this is patent-trolling, right?

Suing over swipe-to-unlock is patent-trolling.

Suing over a round rectangle is patent-trolling.

Suing over rows of icons is patent-trolling.

I'm not aware of Apple suing over row of icons... And none of those thins are needed to make a phone, but FRAND-patent (like this Moto-patent) IS required to make a phone. So other companies can avoid the Apple-patents and still make a phone, but Apple could not make a phone without this Moto-patent.

But I think I made my point: when Apple sues over IP, haters will whine. When Apple is sued over IP, the haters cheer. The lawsuit itself is not relevant, what matter is which side Apple is on. If Apple is suing, then Apple sucks. If Apple is being sued, it's just proof that Apple is a thief.

I think that these lawsuits benefit no-one. The patent-system needs a total overhaul, desperately. Yes, I think that it's obvious that Samsung is copying Apple, but I'm not sure that litigation is the way to handle these cases. And neither do I think hat litigation is the way to go with these other cases either. At worst, they grind the industry to a standstill, and everyone loses.

As far as I can read it, it seems Apple is refusing to pay what the patent holder asks of them for a "FUNDAMENTAL" part of the phone.

Yet are more than happy to try and then prevent the competition from selling their competing products (who actually created the FUNDAMENTAL parts of a phone, you know, the kind that it wouldn't work if you didn't have), because of the fucking case its in.

How anyone can look at this situation and stick up for Apple is beyond. They are either paid PR drones or their heads are so far up their arses they forget it's actually sunny outside if they pulled them out. Especially when they delude themselves they are paying for the quality. You're not. That extra mark up on Apples products goes to pay their lawyers.

Why should Apple pay for a license that covers hardware that they don't make?. If Qualcomm license this patent (or whoever made the 3G chip) why should Apple have to pay for it again?. This is the part that doesn't make much sense.

I think the idea of banning the sale of a group of devices over a FRAND patent is also nuts and a lot of this is because Apple never actually defended the judgement properly.

Apple fans are going to support this ruling because Motorola is just standing up for its IP and Apple shamelessly copied instead of innovating, right? ...

Apple-haters oppose his ruling because this is patent-trolling, right?

Well, very, very rarely does apple ever license anything. Now it seems they are willing to at least cross license. In any case, apple shouldn't be stupid and/or arrogant enough to see it through without EU sales.

All of this is getting out of hand. Apple should just accept the fact that while they innovated in a lot of key areas themselves, they didn't and never can, come up with 100% of the technology in the phone, hardware wise. Stupid software patents should still not stand period, but also if apple already has their SoC maker pay for this patent already, they shouldn't sue them either.

I think the difference is that Apple has a lot of implementation-patents. Stuff like "slide to unlock". Those patents are not needed to make a product, but they can make he product nicer to use. But they are not essential.

Motorola and other have a lot of essential patents. that is, patents that you need to use to actually make a product. Stuff like patents on cell-phone networking. If you want to make a phone, you absolutely need to use those patents.

Companies are not required to license the former, since they are not essential for making the product, but they are required to license the latter. If they didnt, we would not have cell-phones (for example), since the early pioneers (Motorola, Ericsson, Nokia etc.) controlled the key patents, and others were no allowed in he business. Hell, it could be that we had no cell-phones at all, since no company owns all the needed parents to make a working phone.

Highly doubt Apple will get banned over a FRAND patent. Far cheaper to license it which Mot. is obligated to do.

MotMob is obligated to offer "fair and reasonable" terms, and the same or similar terms as offered to anyone else.

MotMob is not required to accept additional, discriminatory, terms as insisted on by Apple. Apple is rejecting a FRAND offer.

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This - I am not sure why this was not brought up in the other cases... Apple rejected the FRAND licensing - and insisted on their own terms... This could be a big mess...

Yeah, I'm not even sure that AAPL has another chance to license at the original terms that motorola offered.

In some jurisdictions only one offer for the patent needs to be made in order to satisfy FRAND encumberence, so after one offer is made under legally acceptable terms by MMI, and rejected. For the rest of the course FRAND no longer is a factor in asserting the patent. I have to look into the particular articles of corporate law in Germany to find whether that is the case.

As far as I can read it, it seems Apple is refusing to pay what the patent holder asks of them for a "FUNDAMENTAL" part of the phone.

Yet are more than happy to try and then prevent the competition from selling their competing products (who actually created the FUNDAMENTAL parts of a phone, you know, the kind that it wouldn't work if you didn't have), because of the fucking case its in.

How anyone can look at this situation and stick up for Apple is beyond. They are either paid PR drones or their heads are so far up their arses they forget it's actually sunny outside if they pulled them out. Especially when they delude themselves they are paying for the quality. You're not. That extra mark up on Apples products goes to pay their lawyers.

Like I said: it all boils down which side of the fence you are. If you are an Apple-hater, you will cheer when Apple is sued. You will whine when Apple sues. If you are a fanboy, it's the other way around. Or why is it hat when Apple is sued, it just shows what a "parasite" Apple is, but when Apple sues, it just shows what a troll Apple is? Whe the double standards?

Companies are not required to license the former, since they are not essential for making the product, but they are required to license the latter. If they didnt, we would not have cell-phones (for example), since the early pioneers (Motorola, Ericsson, Nokia etc.) controlled the key patents, and others were no allowed in he business. Hell, it could be that we had no cell-phones at all, since no company owns all the needed parents to make a working phone.

That is not correct, in fact. Companies in possession of FRAND encumbered patents are required to make one or more nondiscriminatory OFFER(s) for license. They are not required to LICENSE, if the other entities using the patent are not willing to accept an nondiscriminatory offer.

Why should Apple pay for a license that covers hardware that they don't make?. If Qualcomm license this patent (or whoever made the 3G chip) why should Apple have to pay for it again?. This is the part that doesn't make much sense.

Companies are not required to license the former, since they are not essential for making the product, but they are required to license the latter. If they didnt, we would not have cell-phones (for example), since the early pioneers (Motorola, Ericsson, Nokia etc.) controlled the key patents, and others were no allowed in he business. Hell, it could be that we had no cell-phones at all, since no company owns all the needed parents to make a working phone.

That is not correct, in fact. Companies in possession of FRAND encumbered patents are required to make one or more nondiscriminatory OFFER(s) for license. They are not required to LICENSE, if the other entities using the patent are not willing to accept an nondiscriminatory offer.

Well, that is what I meant, obviously. They need to offer the patent to everyone in equal terms, and the license-payment needs to be reasonable. If the other company refuses to license, and goes ahead with their product, the patent-holder can of course sue, FRAND or not.

Why should Apple pay for a license that covers hardware that they don't make?. If Qualcomm license this patent (or whoever made the 3G chip) why should Apple have to pay for it again?. This is the part that doesn't make much sense.

That is also what I wonder.

No they don't have to pay for anything that is purely implemented in hardware produced from another company, in a wireless chipset from QCOM for example. But they may be liable if any part of their OS, drivers, or HAL is aware of and makes uses of these distinctive technologies.

Companies are not required to license the former, since they are not essential for making the product, but they are required to license the latter. If they didnt, we would not have cell-phones (for example), since the early pioneers (Motorola, Ericsson, Nokia etc.) controlled the key patents, and others were no allowed in he business. Hell, it could be that we had no cell-phones at all, since no company owns all the needed parents to make a working phone.

That is not correct, in fact. Companies in possession of FRAND encumbered patents are required to make one or more nondiscriminatory OFFER(s) for license. They are not required to LICENSE, if the other entities using the patent are not willing to accept an nondiscriminatory offer.

Well, that is what I meant, obviously. They need to offer the patent to everyone in equal terms, and the license-payment needs to be reasonable. If the other company refuses to license, and goes ahead with their product, the patent-holder can of course sue, FRAND or not.

OK, just an misunderstanding then.

MMI and its previous parent company apparently have made efforts to license under FRAND terms; so that should be a non-issue now.

Of course the current patent system unbalanced and in reality nonsense and all patents in this sector risk to be declared invalid because so many people did so many things on computers for years.

In the mean while, for me asking reasonable terms for any Apple patent or requiring a deal giving access to each others patents looks for me very reasonable terms that Motorola or Google could ask.

I believe that is what Nokia asked while back, and Apple did not agree. Like I said earlier, the thing is that while Nokia, Moto etc. have lots of essential parents, Apple does not. What Apple has is implementation-patents. Patents that are not essential in making the product, but which help differentiate the product. Nokia wanted to license those patents from Apple in return for licensing their essential patents, and Apple refused. They went to court, and Apple was required to pay Nokia. But I don't think that they licensed their patents to Nokia.

Rather amiss that this article failed to mention that Google, the marketer of the Android OS, is the owner of Motorola. I would have expected some analysis regarding this most important fact especially since it rather confirms that Google purchased Motorola as a means to their patent portfolio. It's about time that Google was treated the same as every other corporation. Propaganda aside, Google is a large advertising company that will do everything within its means to maximise shareholder returns. There is, of course, nothing legally wrong with this. It's time for people to see through the marketing and be more clear-eyed regarding Google's business practices.